Illustration by Angelica Alzona.

Welcome back to Ask a Lawyer, wherein I, a lawyer, respond to your questions. Got a vexing legal issue? Send it over, or drop it in the comments below.

First time caller/long time listener here.

I live in a suburban area with a 2-square-block park in the middle our downtown. Apparently there’s a lot of Pokémon in that park and the surrounding streets based on the raw number of kids wandering around staring at their phones.

If some stupid Millennial/punk ass teenager is playing this game and walks right into oncoming traffic, who is responsible if they get clipped by a driver? We’re assuming that the accident doesn’t take place in a crosswalk and the driver has the right of way. If a serious injury occurs, would either the teenager or the driver be able to sue Nintendo?

Lawyer this hard. If it hasn’t happened yet, it definitely will in the next few weeks.

We live in troubled times. People could send me questions about many things: What should I do when I’m assaulted by a police officer? Does the DNC email leak show any law-breaking? Why did Netflix remove The Money Pit from its library and does it have a legal (moral?) obligation to give us—on-demand, and at a reasonable flat rate—the unsurpassed on-screen chemistry of Shelley Long and Tom Hanks?

Advertisement

Advertisement

But people haven’t been sending me questions about those things. Ever since this year’s celebration of our independence from the British empire, it’s become clear that many people have pledged their allegiance to Pokémon Go. This makes sense. When the going gets tough, the tough escape into an alternate fantasy world layered on top of our increasingly bleak reality. That said, Pokémon Go is unquestionably the largest use of augmented reality that doesn’t make you look like a DEFCON 1 jackass.

I’m going to answer your question and a slew of others under a few categories so we can cover this in one go. Of course, it’s impossible to provide an exact answer since every state does things in a different way, but this will give you a general idea. Let’s do it.

It’s Your Fault

In your example, a Pokémon Go player who gets hit by a car by walking into oncoming traffic is obviously at fault, assuming no fault on the part of the driver. This would be the same if the pedestrian was texting, posting on Instagram, or recording a Vine of a Pokémon Go player getting hit by a car by walking into oncoming traffic. This is how the world works. If you are doing something of your own free will and get hurt, nobody else owes you anything unless their actions or failure of duties contribute to your harm. This should be a surprise to zeroes of people.

Advertisement

Advertisement

Could you sue Nintendo? You could try. But the app isn’t provided by Nintendo. It’s provided by the app developer, Niantic. And Niantic did a pretty good job of not only providing legal disclaimers in its terms—which we’ll discuss below—but also a prominent warning when the app loads, admonishing you to “Remember to be alert at all times. Stay aware of your surroundings.” It’s almost like they don’t want you to get hit by a car.

Get Off My Lawn

I downloaded the app and was disappointed that there were no PokéStops in my house. This meant I would have to stand up and walk around outside, something I do not enjoy doing. In my neighborhood, most of the PokéStops are in public places, murals and such. Near my office, however, one PokéStop was an outdoor fountain behind a locked fence in an apartment complex that said “Residents Only.” No matter where I stood on the perimeter, the app said I wasn’t close enough. So, in order to get to the PokéStop, I would need to hop the fence, converting my morning from a 1990’s cartoon to a 1980’s Choose Your Own Adventure story.

Generally speaking, trespass is intentionally entering—or remaining on—someone else’s property without the owner’s consent. So, if I did hop that fence, I’d be a trespasser. And I’d be responsible for any damage I caused on the property. If I knocked over a tree that then pushed down a fence and resulted in the escape of the property owner’s prized collection of geese, that would all be on me. I did not jump the fence. Not because I cared about trespassing, but because geese are aggressive, bitter, and relentless demon things.

You can even trespass on public property. Parks, for example, are often “closed” at night. Or you could be asked to leave if you’re disturbing the peace in your quest for imaginary fighting creatures or breaking any number of rules on that sign by the entrance that nobody reads.

What about stores and restaurants? Some who have PokéStop are welcoming Pokémon Go players, as it’s giving a boost to business. Others, however, are posting notices that Pokémon antics are limited to paying customers or are outright banned. Can they do this? Of course. Why would a store owner want a bunch of non-paying customers creeping around, increasing potential liability? If you control private property, you set the rules on your invitation to be on the property. So ask yourself if it’s worth it to spank down your Wigglytuff in front of the barista and get kicked out before receiving your vanilla bullshit latte cappa thing.

Bring the Pain

Let’s talk about property owner liability to Pokémon Go players. Property owners basically owe no duty of care to a random trespasser. However, if you know that people routinely trespass on your property, you may have to have to exercise reasonable care to warn or protect against known dangers—the level of care really varies by state. So if you know that there’s a PokéStop on your property—or that people take shortcuts across your property to scurry to a local PokéStop—that’s going to apply to you. This is especially common when it’s children, or adults acting like children, who are doing the trespassing.

Advertisement

Advertisement

There’s been a lot of navel gazing legal talk about how Pokémon may be a new kind of “attractive nuisance”—a man-made thing on the land that’s beckoning children to come onto the land and hurt themselves. That’s not quite right here—while a Venusaur may draw a child onto property, it’s not able to physically cause harm. I only bring this up to remind you that Attractive Nuisance was my law school MC name.

Wait, haven’t we talked about stuff along these lines before? Oh, yes, the dog-bites-trespasser question I answered awhile back.

Back to the store and restaurant example, if someone isn’t trespassing, under traditional tort law, that person is either an invitee or a licensee. An invitee is someone who has an express business purpose for being there (a paying customer). A licensee is just someone who’s kind of… there. (A wandering Pokémon Go player, for example.) The owner generally owes a higher duty of care to the invitee customer than the licensee Pokémon Go player. But there’s still liability there. Further, there’s a modern trend of eliminating the distinction between invitees and licensees, much to the chagrin of the assholes who write bar exam questions. That said, both business proprietors and private property owners should think twice about putting up a sign along the lines of “Pokémon Go players welcome here!” instead of “No Trespassing”—it may result in pegging you to a higher duty of care.

The Finest Print

A lot of online grousing has been about the fact that the Pokémon Go terms of use contain an arbitration provision that would prevent you from suing the developer in court, including joining a class action suit. Despite the noise about this, arbitration provisions are not unusual. What does stick out, though, is that you have 30 days to opt-out of this arbitration provision.

Advertisement

Advertisement

First, this is nothing new. Lawyers are often painfully uncreative creatures. Just use Google to search using some of the exact language from the Niantic arbitration language, and you’ll find that the Niantic legal team went to Melania’s Contracts 101 class at Trump University. What this does highlight is that this isn’t just an issue about Pokémon Go.

Remember when we discussed adhesion contracts? Those are the contracts you get on the back of receipts or click-through online, where you have no bargaining power. Judges are hesitant to enforce them too strongly, including a lot of arbitration provisions in consumer cases. “The 30 day opt-out period is a way some companies try to address contract of adhesion enforceability,” says Sam Fifer, chair of the Intellectual Property and Technology practice group at global law firm Dentons, and Adjunct Professor at Northwestern University School of Law. “Recent cases have raised things like this as problematic elements of website terms.”

Another question is whether the terms of use apply to minors. While the terms provide a mechanism for the registration of kids under 13 years, it doesn’t address kids 13 and up. This is unfortunate, because on the face of the law, a contract made by a minor is voidable, which is totally unfair, because if a teen can be charged with murder, he should at least be able to legally battle at his local Pokémon Go gym. But, like many things in law, this has some fluidity. Fifer says, “Minority consent is usually a shield, not a sword. So if the minor is being taken advantage of, they could probably avoid the contract on those grounds.” Going back to your question: If a minor playing Pokémon Go steps into traffic and gets hit by a car, could the minor sue Niantic on the basis that the limitation on liability in the terms doesn’t apply? Possibly. But I imagine this argument could have already been made for countless other apps and devices.

End Game

In some ways, Pokémon Go raises some new legal issues. But they’re really mostly a re-skinning of some existing issues. We didn’t even get into whether you can pay a real world Pokémon Trainer to level up your account. Or whether Niantic can go after you for posting screenshots of your own battles. Or if what happens in the Pokémon gym stays in the Pokémon gym. I imagine a few years down the road we’ll start seeing statutory action after augmented reality games really take off—imagine a world where the sidewalk is mobbed by Wolfenstein Go players chasing imaginary robot Hitlers, accidentally knocking over Bronies on their Harmony Quests. Shudder for the future.


Dan Ralls—previously known as “A Lawyer”—is a practicing lawyer with years of broad legal experience. He is part of the team at Unwonk Podcast and can be found on Twitter here and here. You can also find him on Medium sometimes. His opinions and conclusions are, of course, his own. Keep in mind that this is general information, and not formal legal advice or legal representation; if you need any of that, get it from a lawyer in real life, not an internet column. A legal problem is serious and fact-specific, and you should treat it accordingly. But you have common sense and already knew that.